People v. Abney

202 A.D.3d 811

158 N.Y.S.3d 863 (Mem)

The PEOPLE, etc., respondent,

v.Jeffrey ABNEY, appellant.

2019–12013

Ind. No. 258/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 22, 2021

February 9, 2022

Patrick Michael Megaro, Uniondale, NY, for appellant.

Anne T. Donnelly, District Attorney, Mineola, NY (Daniel Bresnahan and Benjamin A. Kussman of counsel), for respondent.

BETSY BARROS, J.P., ANGELA G. IANNACCI, CHERYL E. CHAMBERS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Felice J. Muraca, J.), rendered August 15, 2019, convicting him of attempted assault in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that on the People's reverse Batson – Kern application (see Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S.Ct. 1712, 90 L.Ed.2d 69 ; People v. Kern, 75 N.Y.2d 638, 657–658, 555 N.Y.S.2d 647, 554 N.E.2d 1235 ), the People failed to meet their prima facie burden of demonstrating purposeful discrimination as to the defendant's exercise of a peremptory challenge to a prospective juror. This contention is academic as defense counsel proffered race- and gender-neutral explanations for her exercise of the peremptory challenge (see People v. Hecker, 15 N.Y.3d 625, 652, 917 N.Y.S.2d 39, 942 N.E.2d 248 ). In any event, the record demonstrates that the Supreme Court conducted the proper three-step Batson analysis, and supports its determination that defense counsel's proffered reasons challenging the prospective juror were pretextual. Thus, we decline to disturb the court's determination that the challenge was pretextual (see People v. Wahaab, 160 A.D.3d 654, 655, 73 N.Y.S.3d 604 ).

In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

The defendant failed to preserve for appellate review his contention that the Supreme Court's curtailment of his cross-examination of the complainant constituted a violation of his Sixth Amendment right to confront witnesses (see CPL 470.05[2] ; People v. Wright, 160 A.D.3d 667, 670, 74 N.Y.S.3d 302 ). In any event, the defendant was afforded the opportunity to challenge the complainant's credibility, and the court providently exercised its discretion to the extent that it limited defense counsel's cross-examination of him (see People v. Wingate, 184 A.D.3d 738, 739, 125 N.Y.S.3d 724 ; see generally People v. Gomez, 135 A.D.3d 954, 955, 23 N.Y.S.3d 383 ).

The defendant's contention that the Supreme Court failed to comply with the procedure for addressing jury notes set forth by the Court of Appeals in People v. O'Rama, 78 N.Y.2d 270, 277–278, 574 N.Y.S.2d 159, 579 N.E.2d 189 is unpreserved for appellate review (see People v. Martinez, 186 A.D.3d 1530, 1532, 130 N.Y.S.3d 828 ). The alleged procedural defect did not constitute a mode of proceedings error which would obviate the preservation requirement, as the record demonstrates...